EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(the
“Agreement”), dated and effective as of the 23rd day of March, 2007, is entered
by and between Halcyon
Jets, Inc.,
a
Nevada corporation (the “Company”), located at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxxxxx
Xxxxxxx
(the
“Executive”) having an address at 0000 XX 00xx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx
00000. The Company and the Executive may hereinafter be referred to individually
as a “Party” or collectively as the “Parties”.
WITNESSETH:
WHEREAS,
the
Company desires to procure the services of the Executive as its President and
Chief Operating Officer, and the Executive desires to provide such services
to
the Company, all upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE,
in
consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Company and the
Executive agree as follows:
1. Employment.
The
Company agrees to employ the Executive as the President and Chief Operating
Officer of the Company, and the Executive accepts the employment, on the terms
and conditions hereafter set forth. The Executive will perform his duties
hereunder at the Company’s Florida office which, at present, is anticipated to
be located at 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx 00000.
During the Employment Term and any Renewal Terms, as those terms are hereinafter
defined, the Executive shall devote his best efforts, knowledge and skill,
and
his full business time and efforts to the Company’s business and affairs. The
Executive will have the rights, duties and obligations customarily associated
with the position of president of a comparably sized company and will report
directly to the Chief Executive Officer of the Company.
2. Term
of Employment; Renewals; Termination.
2.1 Term.
The
employment hereunder shall commence on the date hereof (the “Commencement
Date”), and shall continue until the end of the Employment Term, unless sooner
terminated pursuant to the terms of this Agreement. The “Employment Term” shall
mean the period commencing on the Commencement Date and continuing until the
third (3rd) anniversary of the Commencement Date.
2.2 Automatic
Renewals upon Expiration of Employment Term.
Following the expiration of the Employment Term, this Agreement shall
automatically renew for terms of one (1) year (each, a “Renewal Term”) unless
either the Company or the Executive provides to the other not less than thirty
(30) days notice of non-renewal prior to the expiration of the Employment Term
or any Renewal Term. In the event of such an automatic renewal, the terms and
conditions of this Agreement shall continue to apply to each such Renewal
Term.
2.3 Termination
For Cause.
The
employment of Executive may be terminated by the Company at any time for Cause.
For purposes of this Agreement, “Cause” is defined as (i) the occurrence of a
breach of any material covenant contained in this Agreement by the Executive
and
the failure to cure such breach after thirty (30) days prior written notice
to
Executive specifying the basis of such breach; or (ii) Executive’s willful
malfeasance, gross negligence or gross or willful misconduct in the performance
of his duties hereunder after thirty (30) days prior written notice to the
Executive specifying the basis of such neglect and the failure of the Executive
to correct such neglect; or (iii) the Executive’s theft or embezzlement from the
Company, or (iv) the Executive’s conviction of a felony under the laws of the
United States or any state of the United States; or (v) a final order by the
Securities and Exchange Commission pertaining to the Executive that could
reasonably be expected to impair or impede the Executive from performing the
functions and duties contemplated by this Agreement. To be effective the
determination of Cause for termination of Executive’s employment hereunder must
be made by a majority of the Board of Directors after notice to Executive and
an
opportunity for Executive to be heard by the Board of Directors.
2.4 Termination
upon Death or Disability.
This
Agreement shall automatically terminate in the event of the Executive’s death or
Permanent Disability. “Permanent Disability” is defined as physical or mental
incapacity resulting in the absence from or inability to properly perform his
duties hereunder (as determined by the Company) on a full time basis of the
Executive for one hundred, eighty (180) consecutive days, provided the Executive
has met the requirements to receive benefits under any long term disability
policy then maintained by the Company and applicable to the Executive. Returns
to work for periods of less than one (1) week shall not toll the passing of
the
time required to establish Permanent Disability hereunder. In the event of
termination due to death or Permanent Disability, the Company shall continue
to
pay the Executive or his designated beneficiary (as applicable) Executive’s Base
Salary (defined below) for twelve (12) months and continue to provide health
Insurance at the Company’s expense for the Executive (if applicable) and his
family (provided an appropriate COBRA election is made) for twelve (12) months
following such termination and the Company shall provide Executive or his
designated beneficiary (if applicable) any options and shares due him pursuant
to Sections 3.6 and 3.8, but the Executive shall be entitled to no other
compensation or benefits.
2.5 Compensation
upon Termination for Cause or A Resignation Without Good
Reason.
In the
event that the Executive’s employment is terminated for Cause pursuant to the
terms of Section 2.3, the Company shall only be obligated to pay the Executive,
or his legal representatives, as the case may be, any unpaid portion of his
Base
Salary at the rate herein provided, which would have been earned had the
Executive remained in the employment of the Company until the effective date
of
such termination,. If the Executive voluntarily terminates his employment with
the Company other than for Good Reason, then the Executive will not be entitled
to receive any compensation after the Effective Date of the termination.
Nevertheless, in the event of a Termination for Cause or termination by the
Executive without Good Reason, Base Salary will be paid to the Executive through
the date of such termination of employment, all prior benefits, vested shares
and vested options given to Executive may be retained by the Executive (and
exercised in the time provided originally), and Executive will be entitled
to
exercise his COBRA rights to continue benefits covered by COBRA.
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2.6 Compensation
Upon Termination Without Cause or A Resignation For Good
Reason.
In the
event the Executive’s employment is terminated by the Company without Cause or
the Executive resigns for Good Reason (as defined in Section 2.7), then the
Company shall continue to pay Executive his Base Salary and Annual Bonuses
(defined below), for the greater of the remaining period of the initial
Employment Term or for twelve (12) months following such termination, in
accordance with the Company’s then-current payroll practices. Executive shall be
permitted to retain (and exercise) any shares and options provided him under
this Agreement (the “Equity Interests” as defined in Section 3.6), and Executive
shall be provided health insurance at the Company’s expense for the same period
(provided he makes an appropriate COBRA election). The payment of the Base
Salary and Annual Bonuses due hereunder shall be paid in accordance with the
Company’s payroll practices, but the amount due hereunder shall be paid in full
to the Executive within 12 months of termination. As to the shares and options
issued to or due Executive hereunder, Executive shall continue to be able to
exercise the options and transfer the shares pursuant to the original terms
governing the grant or issuance of the shares and options. Upon a termination
of
Executive’s employment without Cause or a Resignation for Good Reason, in order
to receive the compensation and benefits provided by this Section 2.6, the
Executive shall sign and deliver to the Company (for the benefit of the Company
and its officers and directors) a release whereby he releases the Company as
well as its officers and directors from any and all claims he could assert
under
this Agreement or relating to his employment with the Company except for any
claims to: (a) his Base Salary, Annual Bonuses and Equity Interests due pursuant
to this Section 2.6; (b) any COBRA rights; (c) any other vested benefits; and
(d) any claims against the Company, its officers and directors for any
intentional tort or arising from any transaction or occurrence which is not
related to Executive’s employment with the Company.
2.7 Executive’s
Resignation for Good Reason.“Good
Reason,” as used In this Agreement, shall mean the resignation of Executive from
employment by the Company after any of the following events:
(a) a
reduction in his Base Salary, Annual Bonus or benefits;
(b) a
diminution of his duties, responsibilities or reporting responsibility as
President and Chief Operating Officer of the Company;
(c) a
breach
by the Company of any provision of this Agreement, provided that the Executive
must first give the Company written notice of the breach and 30 days to cure
the
breach; or
(d) a
requirement that Executive spend more than 50% of his business hours at a
location other than Executive’s principal office set forth in Section
1.
2.8 Any
payments of Base Salary, Annual Bonuses, Equity Interests and other benefits
due
to Executive or his designated beneficiary (as applicable) pursuant to Sections
2.4, 2.5 or 2.6 shall not be subject to offset for any income or benefits
Executive receives or could receive from any other employer or any other
individual or entity after the termination of employment with the
Company.
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3. Compensation.
3.1 Base
Salary.
As
compensation for the services to be rendered by the Executive hereunder, the
Company shall pay the Executive an annual base salary (the “Base Salary) as
follows; (i) Year One (i.e.,
from
the Commencement Date until the first Anniversary Date): Five Hundred Thousand
Dollars ($500,000); (ii) Year Two: Five Hundred Twenty Five Thousand Dollars
($525,000); and (iii) Year Three: Five Hundred Fifty Thousand Dollars ($550,000)
paid bi-weekly, subject to all applicable employment and withholding taxes.
The
salary for any Renewal Term shall be agreed upon by the Parties but shall not
be
less than Five Hundred Fifty Thousand Dollars ($550,000).
3.2 Intentionally
Omitted.
3.3 Benefits.
The
Executive shall be eligible to participate in the Company’s health insurance
plan with individual and family coverage at the Company’s expense, subject to
the terms of that plan, on the same basis as the Company’s other senior
executives. The Executive shall be entitled to participate in the Company’s
profit sharing and 401(k) plans consistent with that provided to other
executives of the Company.
3.4 Vacation.
The
Executive shall be entitled to four (4) weeks paid vacation time per year,
which
shall increase at the rate of one (1) week per year annually, up to a maximum
of
six (6) weeks per year. Accumulated but unused vacation time may be carried
over
from year to year.
3.5 Expenses.
The
Company shall issue the Executive an American Express and any other appropriate
corporate credit card to be used by the Executive for all reasonable expenses
incurred in the performance of his duties. The Company will provide Executive
with the corporate credit cards as soon as possible. In the interim, the Company
shall reimburse the Executive for all reasonable expenses actually incurred
or
paid by the Executive within thirty (30) days following the Executive’s
submission of appropriate expense statements.
3.6 Stock
Options.
The
Company will grant to the Executive 1,000,000 shares of the Company’s Founders
or common stock, with his right to such shares to vest as follows: 500,000
shares shall vest on May 3, 2007 and the remaining 500,000 shares shall vest
in
quarterly installments of 166,666 shares on July 1, 2007, October 1, 2007 and
December 31, 2007. These shares shall not be registered under the Securities
Act
of 1933, as amended, and therefore may not be sold or otherwise transferred
except pursuant to an effective registration statement or if an exemption from
registration applies. The Company is in the process of finalizing an Option
Plan
which shall be implemented shortly. The Company agrees to provide Executive
with
options pursuant to the Option Plan at the same time, in the same amount and
on
the same terms as are provided to the Chief Executive Officer. The shares and
options provided herein are referred to collectively as “The Equity
Interests.”
3.7 Equity
Based Compensation.
The
Executive shall be entitled to participate in each equity based or other
discretionary compensation plan, such as a stock option, stock bonus or stock
appreciation rights plan, in which the Company’s Chief Executive Officer
participates in the event that the Company adopts any such plan(s).
4
3.8 In
the
event of the Executive’s death or disability, all compensation earned to date,
as well as all shares, options or other benefits provided Executive in Sections
3.1 to 3.7 hereof shall immediately vest and be paid to Executive or Executive’s
designated beneficiary (as applicable) within the time provided
herein.
4. Confidentiality;
No Conflict; No Competition.
4.1 Confidential
Information.
4.1.1 “Confidential
Information,” as defined below, includes not only information disclosed by the
Company to the Executive, but also information developed or learned by the
Executive during the course of or as a result of employment by the Company
which
information shall be the property of the Company. Confidential Information
includes all information that has or could have commercial value or other
utility in the business in which the Company is engaged or contemplates
engaging, and all information of which the unauthorized disclosure could be
detrimental to the interests of the Company, whether or not such information
is
specifically labeled as Confidential Information by the Company. By way of
example and without limitation, the Confidential Information of the Company
includes confidential methods of operation and organization. Notwithstanding
the
foregoing, the term “Confidential Information” does not include, and Executive
shall not be restricted during or after his employment with the Company from
using any information, even if otherwise designated as “Confidential
Information”: (i) which Executive learned of other than in the course of his
employment with the Company; (ii) which is obtainable from sources outside
of
the Company, without breaching any contractual or other obligations; or (iii)
which otherwise exists in the public domain.
4.1.2
The
Executive shall not, either during his employment by the Company or at any
time
after termination of such employment, for whatever reason, impart or disclose
any Confidential Information as defined and limited by Section 4.1.1 to any
person, firm or entity other than the Company, or use any of such Confidential
Information, directly or indirectly, for his own benefit or for the benefit
of
any person, firm or entity other than the Company. The Executive hereby
acknowledges that the items included within the definition of Confidential
Information in Section 4.1.1 are valuable assets of the Company and that the
Company has a legitimate business interest in protecting such Confidential
Information.
4.2 No
Conflict; No Other Employment.
During
the term of this Agreement, the Executive shall not: (i) engage in any activity
which conflicts with the performance of the Executive’s duties hereunder nor
shall the Executive engage in any other business activity, whether or not such
business activity is pursued for gain or profit, except as approved in advance
in writing by the Chief Executive Officer of the Company, which approval shall
not be unreasonably withheld; or (ii) engage in any other employment, whether
as
an executive or consultant or in any other capacity, and whether or not
compensated for his services, except as approved in advance in writing by the
Chief Executive Officer of the Company, which approval shall not be unreasonably
withheld.
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4.3 No
Solicitations.
During
the Employment Term and for a period of twelve (12) months following the
termination of the Executive’s employment with the Company as provided herein,
the Executive shall not (A) directly or indirectly, either as principal,
manager, agent, consultant, officer, stockholder, partner, investor, lender
or
employee or in any other capacity, carry on, be engaged in or have any financial
interest in any business which is in competition with the business of the
Company or (B) solicit, directly or indirectly, for hiring or hire or in any
other manner, solicit or retain the services of, for Executive’s account or the
account of any of Executive’s employers, (i) any person who is at such time, or
has been within one (1) year of such time, an executive of the Company and
its
affiliates or (ii) any consultant or employee who is at such time, or has been
within one (1) year of such time, under contract with the Company unless that
employee or consultant was under contract with the Executive’s new employer
prior to such employer retaining or hiring the Executive. For purposes of this
Section 4.3, a business shall be deemed to be “in competition with the business
of the Company” if it is involved in the purchase, sale, lease, management of or
other dealing in any property or the rendering of any service purchased, sold,
leased, managed, dealt in or rendered by the Company. The restraints in this
Section 4.3 shall not apply in the event that the Company does not renew the
Agreement, the Executive’s employment is terminated without Cause or the
Executive resigns for Good Reason.
4.4 Protection
of Reputation.
During
the term of this Agreement and thereafter, the Executive and the Company each
agree that neither will take any action which is intended, or would reasonable
be expected, to harm the other’s reputation or which would reasonably be
expected to lead to unwanted or unfavorable publicity.
4.5 Company
Property.
The
Executive agrees that all copies, whether on paper or a computer storage device,
of all memoranda, notes, records, charts, formulae, specifications, lists and
other documents made, compiled or received, held, or used, by the Executive
while employed by the Company concerning any phase of the Company’s business,
trade secrets or Confidential Information shall be the Company’s property and
shall be delivered by the Executive to the Company on the termination of the
Executive’s employment or at an earlier time on the request of the Company. The
Company acknowledges and agrees that there may be memoranda, notes, records,
charts, formulae, specifications, lists and other documents made, compiled
or
received, held, or used by the Executive prior to employment by the Company
and
that, at Executive’s request, copies of same shall be delivered by the Company
to the Executive on termination of the Executive’s employment or at an earlier
time on the request of the Executive. The Executive further covenants and agrees
that he shall promptly disclose to the Company, and take all steps necessary
to
transfer to the Company all right, title and interest in, all products developed
or other inventions, computer software and other intellectual property (the
“Intellectual Property”) which he conceives or develops during the course of his
employment, which are in any way related to the business of the Company, if
applicable, will affix appropriate legends and copyright notices indicating
the
Company’s ownership of all Intellectual Property and all underlying
documentation, and will execute such further assignments and other documents
as
the Company considers necessary to vest, perfect, patent, maintain or defend
the
Company’s right, title and interest in the Intellectual Property.
4.6 Injunctive
Relief.
The
Executive further recognizes and agrees that any material violation of his
agreements In this Section 4 would cause such damage or injury to the Company
as
would be irreparable the exact amount of damage would be impossible to
ascertain; therefore, the Executive agrees that notwithstanding anything to
the
contrary contained in this Agreement, the Company shall be entitled to seek
injunctive relief from any court of competent jurisdiction restraining any
further violation by the Executive of this Section 4. Such right to seek an
injunction shall be cumulative and in addition to, and not in limitation of,
any
other rights and remedies by the Company may have in equity or at
law.
6
4.7 Reasonableness.
The
Executive agrees that the provisions of this Section 4 are reasonable and
necessary for the protection of the Company and that each provision herein
set
forth, Including without limitation, the period of time, geographical area
and
types and scope of the restrictions on his activities specified therein, are
intended to be and shall be divisible. If any provision of this Section 4
(including any sentence, clause or part thereof) shall be held contrary to
law
or invalid or unenforceable in any respect, the remaining provisions shall
not
be affected but shall remain in full force and effect and the invalid or
unenforceable provisions shall be deemed modified and amended to the extent
necessary to render same valid and enforceable.
5. Successors.
This
Agreement shall be binding upon and inure to the benefit of the Company and
its
respective successors and assigns by merger, consolidation, transfer of business
and properties or otherwise, and shall inure to the benefit of the Executive
and
his heirs and legal representatives, provided, however, that the Executive
may
not assign his rights or obligations under this Agreement without the prior
written consent of the Company.
6. Successors.
6.1 Notices.
All
notices and other communications to be made hereunder shall be in writing and
shall be deemed to have been given when the same are either. (i) personally
delivered; (ii) mailed, registered or certified mail, first class postage
prepaid return receipt requested; or (iii) delivered by a reputable private
overnight courier service utilizing a written receipt or other written proof
of
delivery, to the applicable party at the address set forth above. Any party
refusing delivery of a notice shall be charged with knowledge of its
contents.
6.2 Definitions
and Captions.
All
captions and headings of paragraphs, subparagraphs and sections are not part
of
this Agreement and shall not be used for the interpretation or determination
of
the validity of this Agreement or any provision hereon.
6.3 Names
and Entities.
The
masculine gender shall include the neuter genders, and the word “person” shall
include an individual, a corporation, a partnership, a limited partnership,
a
limited liability partnership, a limited liability company and a trust. Whenever
the singular is used in this Agreement the same shall include the plural when
required by the context and vice versa.
6.4 Severability.
In the
event any one or more of the provisions of this Agreement shall be held to
be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or
unenforceability shall not affect other provisions hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision never
had been contained herein.
6.5 Governing
Law and Forum Selection.
This
Agreement shall be construed in accordance with the laws of the State of New
York, exclusive of any choice of law principles. In the event any dispute arises
between the parties relative to this Agreement, then the dispute shall be
litigated in any federal or state court of competent jurisdiction in the State
of New York. The prevailing party in such litigation, in addition to any other
remedies at law, in equity or otherwise, shall be entitled to an award of their
reasonable attorneys’ fees, expenses (including reasonable expert fees) and
costs (including transcript court reporting fees).
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6.6 Entire
Agreement; Amendments.
This
Agreement contains the entire understanding and agreement of the parties hereto
with respect to the matters contained herein, and may not be amended or
supplemented at any time unless by writing, executed by each of the said
parties. Any agreement or understanding, written or otherwise, prior to the
effective date of this Agreement between the Executive and the Company relating
to the employment of the Executive is hereby terminated and
discharged.
6.7 Indemnification.
The
Company shall indemnify the Executive against all losses (including all
settlements or judgments), claims, expenses, or other liabilities of any nature
arising by reason of the fact that he (a) is or was an officer, employee, or
agent of the Company or any of its subsidiaries or affiliates, or (b) while
a
director, officer, employee or agent of the Company, the Company or any of
their
subsidiaries or affiliates, is or was serving at the request of the Employer
as
a director, officer, partner, venturer, proprietor, trustee, employee, agent
or
similar functionary of another corporation, partnership, joint venture, trust,
employee benefit plan or other entity, or (c) guaranteed any obligation of
the
Company or any of its subsidiaries or affiliates, or (d) allegedly is in
violation of any agreement with his former employer, Blue Star, by virtue of
his
employment by the Company, in each case to the fullest extent permitted under
Nevada law. Without limiting the foregoing, the Executive shall be entitled
to
payment of all reasonable costs and expenses including attorneys’ fees incurred
in the defense of any action or proceeding arising out of his employment and
any
settlement or judgment, subject to the provisions of the Nevada General
Corporation Law. The Executive shall be entitled to counsel selected by the
Company subject to the Executive’s consent, not to be unreasonably withheld. The
Company shall pay any counsel so retained for Executive for all such fees and
costs incurred on the terms negotiated with such counsel. The Company shall
pay
any settlement or judgment involving or entered against Executive within the
time provided by any Settlement Agreement or by the Court in which any judgment
is entered.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement or caused their duly authorized
officers to execute this Agreement on date set forth above.
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HALCYON
JETS, INC.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
|
|||
|
|
Chief
Executive Officer
|
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EXECUTIVE
|
|||
|
/s/
Xxxxxxxxx Xxxxxxx
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|
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Xxxxxxxxx
Xxxxxxx
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